Ram Bhadra Tiwari and Another vs State of MP

Rakesh Saksena, J.—Appellants have filed this appeal against the judgment dated 3.5.2002 passed by Special and Additional Sessions Judge, Shahdol, in Sessions Trial No. 179/2001. convicting them under Sections 302/34, 304-B/34 and 498-A of the Indian Penal Code and sentencing them to imprisonment for life, rigorous Imprisonment for 10 years and rigorous imprisonment for 2 years with fine Rs. 500/-, on each count respectively.

Facts, as alleged by the prosecution, are that Sonika, the deceased, was married to Appellant Ram Bhadra on 4th June 1997. Appellant Deowati was the mother-in-law of Sonika. After marriage. Sonika went to her nuptial house and kept on visiting her mother''s house After sometime, she complained about harassment meted out to her by her husband and mother-in-law for not bringing a scooter in dowry. On 3.6.2001. at about 5.15 in the morning. Vidya Sagar (P.W. 1). brother of Sonika, received information on telephone that Sonika had died. Vidya Sagar alongwith his elder brother Rajaram Pathak went to village Garfandia where accused resided and saw the dead body of Sonika lying in the courtyard of their house. There were injuries on her face. None disclosed to them how Sonika died. On the same day. at about 8.30 a.m., Vidya Sagar (P.W. 1) lodged a report with Police Dhanpuri. Sub Inspector M.S. Karchuli (P.W. 11) registered a Murg (Ex. P/1). Police, in the presence of Executive Magistrate, Jaithpur, conducted the inquest of the dead body and prepared memorandum (Ex.P/3). Executive Magistrate sent the dead body to community Health Centre, Dhanpuri for postmortem examination. Dr. K.K. Gautam (P.W. 5) alongwith Dr. B.N Sharma and Dr. Richa Gupta conducted postmortem examination at about 5.00 p.m. on the same day. He found that deceased was carrying pregnancy of 32 to 36 weeks. She had injuries on her face. There was bleeding from her nose and mouth. The injuries found on the body of the deceased were ante mortem in nature, and were caused within 24 hours of the postmortem examination. Postmortem examination reports are Ex.P/9-A and Ex.P/10.

In the course of investigation, investigating officer prepared the spot map, arrested the accused persons and at the instance of accused Ram Bhadra on 7.6.2001 seized a stone and a ''Danda'' kept under his cot. In the Murg enquiry, it was revealed that accused persons subjected the deceased to cruelty for not meeting the demand of a scooter in dowry and that on some dispute, on not allowing her to go to her parents'' house, assaulted her, as a result of which she died.

After investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Budhar and the case was committed for trial to the Court of Sessions, Shahdol.

On charges being framed, accused abjured their guilt and stated that witnesses spoke false against them due to enmity. They were falsely implicated. No evidence in their defence was adduced.

Relying on the evidence of Vidya Sagar (P.W. 1), Pushpa Pathak (P.W. 2), Kalpana (P.W. 3), Hirawati (P.W. 6), Chintamani Yadav (P.W. 7), Suryakant Tiwari (P.W. 8), Rajnikant (P.W. 12), Dr. K.K. Gautam (P.W. 5) and the Investigating Officer M.S. Karchuli (P.W. 11), learned trial judge held accused persons guilty and convicted and sentenced them as mentioned above.

We have heard the learned counset for the parties.

Learned Counsel for the Appellant submitted that it was not established by the prosecution evidence that the deceased met with a homicidal death. According to him, she had fallen down from the staircase and contracted injuries, which resulted into her death.

On perusal of the evidence of Dr. K.K. Gautam (P.W. 5), it is revealed that on postmortem examination of the dead body of the deceased he found following injuries:

(1) Haematoma on left side forehead with black eye left in area of 10 cms x 12.5 cms.

(2) Multiple abrasions over both cheeks, chin with clotted dark red blood.

(3) Fracture of clavicle bone, left lateral with dislocation of left shoulder.

(4) Abrasion at left forearm near wrist 4 cm x 1 cm.

On dissection- Dark tan clotted blood under haematoma. Brain tissue left frontal injured, sub dural clotted blood at middle and left side frontal cranial cavity. Heart right full, lung congested. Fracture of left clavicle and lateral with collection of blood.

32-36 weeks'' size, full term female child found cynosed in uterus.

In the opinion of doctor, the injuries were ante mortem in nature. Head injury was caused by hard and blunt object within 24 hours. Cause of death Was coma due to anti mortem head injury.

Cause of death of foetus was anorexia due to cessation of blood supply.

The head injury of the deceased was sufficient in ordinary course of nature to cause her death.

In cross examination. Dr. K.K. Gautam (P.W. 5) admitted that injuries found on the body of deceased might have been accidental if she struck against some stone or fallen down from stairs.

It is true that Dr. K.K. Gautam (P.W. 5) did not specifically state that the injuries found on the body of the deceased were homicidal in nature and expressed the possibility of them being caused in an accident, but. In our opinion, it can be gathered from the nature of injuries that they could be homicidal also. Since doctor is not an eyewitness, for establishment of the fact that the injuries were homicidal or accidental in nature, appreciation of the surrounding circumstances is essential.

In the statement of accused u/s 313 of the Code of Criminal Procedure, none of the accused stated that the deceased had fallen down from any staircase. It was not even reflected from the spot map (Ex.P/21) drawn by Inspector M.S. Karchuli (P.W. 11) that there had been any staircase in the courtyard. On the contrary, it was revealed from the spot map that the house where the incident took place was a ''Kachcha" house having roof of earthen tiles (Khaprel). There was nothing on record to indicate that the house of the Appellants was a double storeyed house.

Suryakant (P.W. 8) and Rajnikant (P.W. 12) though in cross-examination admitted that the heard in village that deceased had died by a fall from the staircase, but they did not disclose from whom they heard it They were declared hostile. Thus, in the absence of any evidence on record to the effect that deceased fell from stairs coupled with the statement of accused wherein they did not say that deceased fell from stairs, it cannot be held that the deceased suffered injuries by an accidental fall. Therefore, the natural corollary is that the injuries and the death of deceased were homicidal in nature.

In Trimukh Maroti Kirkan Vs. State of Maharashtra, the Apex Court observed that:

If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it would be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers ah explanation which is found to be false, it is a strong circumstances which indicates that he is responsible for commission of the time.

Now, the question before us is whether on the basis of facts brought on record, the husband of the deceased viz. Ram Bhadra only or both the accused would be liable for causing injuries to deceased. The indication given by the Apex Court in Trimukh Maroti (supra) appears to be that where an accused is alleged to have committed murder of his wife and prosecution succeeds in leading evidence to show that shortly before commission of crime they were together in the dwelling home, it has to be held that if accused husband does not offer any explanation, how the wife received injuries or offers a false explanation, it would be a strong circumstance indicating that he is responsible for commission of the crime. Thus, it appears to indicate the responsibility of the husband only and not of other members of the family except where there is clear evidence of their involvement. In the opinion of doctor, the cause of death of deceased was coma due to ante mortem head injury. The head injury was a haematoma on the left side of forehead with black left eye. On the basis of the evidence adduced in the case, it is not possible for us to hold all the persons in the house including Deowati liable for causing injuries to deceased in view of the ratio of Trimukh Maroti (supra). However it can safely be held that the injury was caused by accused Ram Bhadra as his presence in the house stood established by the evidence of Rajnikant (P.W. 12). Rajnikant, though did not toe the line of prosecution, but he stated that after return from the house of Ganga Singh in the night, Ram Bhadra went to his house. Apart from that, from the evidence of Kalpana (P.W. 3) also, the presence of Ram Bhadra in the house is clearly established. It is true that circumstances give rise to suspicion against Appellant Deowati also, but the suspicion howsoever great; cannot take place of proof. Merely a single stray line appearing in the evidence of Kalpana (P.W. 3), a child witness of 8 years, that Deowati grappled with the deceased cannot be accepted because of it being merely a suggestion by the prosecution to which she innocently yielded.

In these circumstances, we are of the definite view that it has been satisfactorily established by the prosecution evidence that it was only accused Ram Bhadra, who caused the death of deceased. The evidence however does not appear to us sufficient against accused Deowati to hold her guilty u/s 302 of the Indian Penal Code. As such she deserves to be acquitted.

Learned Counsel for the Appellant strenuously urged that the conviction of accused Ram Bhadra u/s 302 IPC is not justified as the origin or the genesis of the occurrence, which resulted into the death of deceased, has not been proved. It is true that no evidence has been adduced by the prosecution to indicate, under what circumstances injuries were caused to deceased. There was only one injury on the forehead, which was the cause of death. There were some abrasions on the check and chin and a fracture of clavicle bone of the shoulder. It can, therefore, be inferred that there must have been a scuffle between deceased and the accused. Since accused did not offer any explanation for that, and there is no evidence on record from which the exact situation under which the incident occurred can be gathered, this Court is left with the option only to conjecture the probabilities. It is also significant to note that at the time of death the deceased was carrying pregnancy of 32-36 weeks. There was a full term foetus in her womb. Therefore, it does not stand to reason that her husband would take up in his mind to deliberately kill her. The prosecution has tendered no evidence to establish motive on the part of the accused to kill his wife. In these circumstances, we arc of the definite opinion that the conviction of accused/Appellant Ram Bhadra u/s 302 IPC is not justified. However, since the act by which he caused the death of the deceased was done by him with the intention of causing such bodily injury to deceased as was likely to cause her death, he is liable to be convicted u/s 304-1 of the Indian Penal Code.

As far as conviction of accused/Appellants u/s 304-B and 498-A of the India Penal Code is concerned, from the evidence of Vidya Sagar (P.W. 1) and Pushpa Pathak (P.W. 2) it stands established that deceased Sonika was married to accused Ram Bhadra on 4th June 1997 and she died a homicidal death in the house of her husband during the intervening night of 2nd and 3rd June 2001. Thus, it has been proved that deceased died otherwise then under normal circumstances in the house of her husband within seven years of her marriage. The question now remains to be answered is whether soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand of dowry. Vidya Sagar (P.W. 1), brother of deceased deposed that whenever deceased came to his house, she told that her in-laws used to manhandle her and ask her to bring a scooter. This demand was being made by her husband, mother-in-law and father-in-law. The evidence of Vidya Sagar (P.W. 1) finds support from the evidence of Pushpa Pathak (P.W. 2), mother of the deceased, who deposed that for about one year after the marriage of Sonika, her in-laws kept her well, but, thereafter, whenever she came to her house, she complained that accused persons made demand of a scooter. There is nothing in the evidence of these witnesses to indicate that the accused persons caused the death of deceased for not meeting the demand of dowry. There is also no evidence on record to indicate that the accused persons harassed or subjected the deceased to cruelty for or in connection with any demand of dowry soon before her death. In Kailash Chandra Vs. State of M.P., the Apex Court, affirming the law laid down in Kans Raj Vs. State of Punjab and Others, . held:

In Kans Raj v. State of Punjab a three-Judge Bench of this Court dealt with the presumption available in terms of Section 113-B of the Evidence Act, 1872 (in short "the Evidence Act") and its effect on finding persons guilty in terms of Section 304-B IPC. It was noted as follows. (SCC P.217), para 9)

The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry-such death shall be punishable u/s 304-B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that:

(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances:

(b) such death should have occurred within 7 years of her marriage;

(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

(d) such cruelty or harassment should be for or in connection with the demand of dowry; and

(e) to such cruelty or harassment the deceased should have been subjected soon before her death.

No presumption u/s 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty or harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the victim. This is so because the expression used in the relevant provision is "soon before". The expression is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term "soon before" is synonymous with the term "immediately before". This is because of what is stated in Section 114 illustration (a) of the Evidence Act. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question There must be existence of proximate and live link (see Hira Lal and Others Vs. State (Govt. of NCT) Delhi,

On examining the factual position in the present case in the light of above proposition of law, we find that prosecution failed to establish that death of the deceased was caused in connection with demand for dowry that too soon before the death of deceased. Since Ano nexus could be established by the prosecution evidence between demand of scooter and the death of deceased, the provision relating to presumption u/s 113-B can also be not made applicable. As such the conviction of accused persons u/s 304-B of Indian Penal Code cannot be sustained. However, from the evidence of Vidya Sagar (P.W. 1) and Pushpa Pathak (P.W. 2) it can be gathered that after the marriage, both the accused persons had harassed and subjected Sonika to cruelty to meet their unlawful demand of a scooter. Therefore, their conviction by the trial Court u/s 498-A of the Indian Penal Code deserves to be affirmed.

In view of the above discussion, conviction and sentence of both the Appellants u/s 302/34 of the Indian Penal Code is set aside. Appellant No. 1 Ram Bhadra is, however, convicted u/s 304-1 of the Indian Penal Code and sentenced to rigorous imprisonment for 10 years. Conviction of both the Appellants u/s 304-B/34 of the Indian Penal Code is set aside. They are acquitted of that charge. Conviction of both the Appellants u/s 498-A of the Indian Penal Code is affirmed. However, in view of the old age of Appellant No. 2 Deowati, who must be of around 70 years of age now, and long lapse of time after the incident, sentence of both the Appellants on that count is reduced from 2 years to rigorous imprisonment for six months only. It has been pointed out that Appellant No. 2 Deowati has already suffered custody for a period of six months, therefore, she need not surrender.

Appeat partly allowed.